The Appeal CommissionThe Workers Compensation Act of Manitoba

Preamble

An Appeal Panel hearing was arranged for April 12, 2000, at the request of the claimant and his advocate. As the claimant failed to attend the hearing, the hearing was adjourned sine die.

At the request of the claimant and his advocate, another hearing was arranged and held on June 8, 2000. The hearing was subsequently adjourned sine die in order to allow the claimant and his advocate an opportunity to submit additional medical information together with pertinent wage information. As the claimant and/or his advocate did not submit the requested information to the Panel on or before the agreed upon date of July 11, 2000, the Panel met to render its final decision on August 11, 2000, with the information already on file.

Issue

May 9, 1999 Right Knee injury:

Whether or not the claimant is entitled to wage loss benefits beyond September 10, 1999; and

Whether or not the claimant's average earnings have been correctly calculated.

May 9, 1999 Hernia injury:

Whether or not the claimant is entitled to benefits in relation to his hernia condition.

Decision

May 9, 1999 Right Knee injury:

That the claimant is not entitled to wage loss benefits beyond September 10, 1999; and

That the claimant's average earnings have been correctly calculated.

May 9, 1999 Hernia injury:

That the claimant is not entitled to benefits in relation to his hernia condition.

Background

While working as a forest firefighter on May 9, 1999, the claimant lifted a bag of hoses when his foot became stuck in the mud. As a result of his attempting to free his foot, the claimant indicated that he injured his right knee and reaggravated a past hernia condition.

Medical information consisted of a hospital emergency report which showed that the claimant had been admitted to hospital overnight on May 9, 1999, with respect to groin and right knee pain. When seen by his attending physician on May 31, 1999, the physician diagnosed a medial collateral ligament tear and a tender umbilical hernia. He considered the claimant to be totally disabled for 6 weeks.

On June 7, 1999, a Workers Compensation Board (WCB) adjudicator spoke to the claimant. The claimant advised that he had been working as a fire fighter on the front line in the forest fires. He had to carry a bag of wet fire hose for mile uphill to the fire fighting area. After setting it down he had to pick it up again and move it. The bag weighed between 100 and 150 pounds. In order to lift the bag, he had to give it a good jerk and this was when he felt a pain in the groin. Despite the pain, he continued working. About 45 minutes later his foot became stuck in a mud hole. While struggling to get it unstuck, he felt his right knee buckle together with intense pain.

The claimant told the adjudicator that he suffered a hernia in 1998. He was unsure of the exact date or month. He could not remember how it happened or whether it was work related. He did say that he was supposed to have it operated on in the fall of 1998 but the operation did not take place because he was advised to lose weight before having the operation. Thus no operation was ever performed.

A report was obtained from a general surgeon who examined the claimant on July 6, 1998. The claimant presented with a painful enlarged umbilical hernia. The surgeon recommended surgery but felt the claimant should lose weight first.

On June 7, 1999, a right knee x-ray report revealed no fracture or dislocation, however, there was mild to moderate osteoarthritic changes noted.

On June 8, 1999, the claimant was advised that a separate claim had been created for his hernia condition. With respect to his right knee claim, the adjudicator stated that the claim had been accepted and that wage loss benefits would be forthcoming. The claimant was initially paid wage loss benefits from May 10 to June 4 inclusive for his right knee.

A WCB orthopaedic consultant assessed the claimant on July 9, 1999. The consultant reported that the claimant had pre-existing osteoarthritis of the right knee as well as an umbilical hernia. There was laxity of the medial collateral ligament which may be due to the osteoarthritic changes. The consultant stated that if there had been a rupture of the ligament the patient would be unable to walk without crutches. The x-ray films were not clear and this was likely due in part to the claimant's obesity. The consultant concluded that the claimant's obesity was an ongoing factor and that the claimant would likely continue to have symptoms in his knee because of this. He thought that the repair of the hernia would be more difficult and that a recurrence of the hernia would be more likely because of the obesity.

On August 6, 1999, the orthopaedic consultant reviewed x-rays of both hips and knees taken on July 13, 1999. No patellar or intercondylar views were done. In the right knee, the consultant noted there was no change from May 31, 1999. There was a bony prominence on the tibial plateau in the posterior intercondylar region. This was not well seen in the x-rays of May 31 and may be due to an old injury, or a congenital abnormality. It was not likely degenerative according to the consultant. X-rays of the hips and left knee showed no definite abnormality. There was no evidence of any ongoing effects of the aggravation from the work related injury to the right knee. The claimant had osteoarthritis of this knee which was likely enhanced by his obesity.

File information revealed that the claimant's weekly wage loss benefits were reduced from $559.39 per week to $201.51 per week effective August 2, 1999. This was based on a review of the claimant's pre-accident earnings.

On September 1, 1999, Rehabilitation & Compensation Services wrote to the claimant with respect to his hernia condition. It was noted that the claimant's hernia was first diagnosed by his attending physician in 1998 as a umbilical hernia. Surgery was thought necessary at that time but was postponed. It was therefore the view of the adjudicator that the hauling of the wet fire hose may have temporarily aggravated the condition but the condition was not made significantly worse. It was therefore determined that "directly related medical costs" would be paid but there was no basis to extend wage loss or accept surgery. This decision was appealed by the claimant on September 2, 1999.

In a decision dated October 22, 1999, Review Office stated that the file information clearly established that the worker had a pre-existing, painful, enlarging umbilical hernia dating back to 1998 which was not operated on due to surgical risks associated with his excessive weight. After spending the night in hospital, Review Office noted that the claimant did not seek further medical attention for his injuries until May 31, 1999, when he was seen by a general practitioner. "The worker was seen for both his right knee injury and for his hernia condition, but, while physiotherapy was prescribed for his knee injury, no treatment was recommended or referral made for his hernia condition." Review Office found that the medical information did not establish that the worker was disabled by reason of an aggravation of the pre-existing hernia condition caused by the accident at work on May 9, 1999. Review Office concluded that the worker was not entitled to wage loss benefits with respect to his hernia condition.

On September 3, 1999, Rehabilitation & Compensation Services advised the claimant that wage loss benefits would be paid up to and including September 10, 1999, inclusive and final, for his right knee condition. The claimant was advised that x-ray evidence revealed that he had osteoarthritis in his right knee and that it was the opinion of the WCB that this was likely due to and enhanced by his obesity. It was the opinion of the WCB that there was no longer a cause and effect relationship between the compensable injury of May 9, 1999 and the pre-existing osteoarthritis of his right knee. On September 8, 1999, the claimant appealed this decision to Review Office.

In a letter dated September 14, 1999, the treating physician commented, "Osteoarthritis may be present for months to years before a joint becomes painful and equally so a painful joint may be normal on x-ray."

On October 19, 1999, a second WCB orthopaedic consultant reviewed the case at Review Office's request. The consultant was asked whether the mild osteoarthritic changes found in the worker's right knee on the x-rays taken May 31, 1999, were caused by the accident of May 9, 1999, or whether they pre-existed the compensable injury. The orthopaedic consultant stated that the osteoarthritic changes were pre-existing and that they would not have developed in 22 days. The orthopaedic consultant also provided his opinion that the claimant had sufficiently recovered from the effects of the compensable injury. "He apparently sustained a traction, rotational injury to the knee which should have resolved over a period of 6-8 weeks in an obese patient with pre-existing OA [osteoarthritis]."

On November 5, 1999, Review Office determined that the claimant was not entitled to wage loss benefits beyond September 10, 1999 and that his wage loss benefits were correctly reduced to $201.51 per week effective August 2, 1999.

Review Office took into consideration sections 4(2), 39(2), 60(2)(c)(e) of the Workers Compensation Act (the Act), when concluding that the claimant was not entitled to wage loss benefits. Review Office also considered the evidence on file received from the treating physician, the WCB orthopaedic consultant who examined the claimant on July 9, 1999, and the comments made by the second WCB consultant on October 19, 1999. Review Office believed that the weight of evidence indicated that the worker was no longer suffering a loss of earning capacity due to the right knee injury sustained at work on May 9, 1999.

With respect to the reduction of the worker's wage loss benefits from $559.39 per week to $201.51 per week, effective August 2, 1999, Review Office confirmed that this action was taken in accordance with the established legislation and policy. In this respect, Review Office took into consideration sections 45(2), 1(4)(c), 1(8), 77(3) of the Act and WCB policies 44.80.10.10 and 44.80.30.35, in arriving at its decision.

The claimant appealed both Review Office decisions and an oral hearing was arranged for April 12, 2000. The April 12, 2000, hearing was adjourned sine die as the claimant failed to attend.

On May 3, 2000, the claimant contacted the Appeal Commission to arrange another hearing date. Arrangements were then made for the hearing to reconvene on June 8, 2000. The June 8th hearing was adjourned sine die to allow the claimant and his advocate the opportunity to obtain and provide additional medical information together with pertinent wage information. As no response was received from either the claimant or his advocate by July 27, 2000, the Panel met to render its final decision with the information already on file on August 11, 2000.

Reasons

As the background notes indicate, the claimant injured his right knee and aggravated a pre-existing non-compensable hernia condition while working as an emergency forest firefighter on May 9th, 1999. The claimant spent an uneventful evening in a local hospital and was later discharged the following day, as he was feeling much better. A physician's first report of injury dated May 31st, 1999 recorded a diagnosis of "medial collateral ligament tear, tender umbilical hernia".

An orthopaedic consultant to the WCB examined the claimant on July 9th, 1999. He concluded his examination notes by saying:

"The claimant has pre-existing osteoarthritis of the right knee as well as an umbilical hernia. There is laxity of the medial collateral ligaments. This may be due to the osteoarthritic change. Usually if there is a rupture of the ligaments the patient is unable to walk without crutches. The x-ray films are not as clear as they could be. This is likely due in part to his obesity. Repeat x-rays of the knee with patellar and intercondylar views have been ordered. I have also asked for x-rays of the hips because of his pain on rotation of the hips. The umbilical hernia is also pre-existing. He has sought medical treatment for this recently however he indicated that the hernia has been more painful since his injury.

His obesity is almost certainly going to be an ongoing factor. Because of this, he likely will continue having symptoms with his knee. I think that the likely repair of the hernia would be more difficult and a recurrence of the hernia is more likely because of the obesity."

Beyond a June 25th, 1999 doctor's progress report, there is no further medical information provided to the WCB from the treating physician with respect to either the claimant's right knee or hernia problems. In the opinion of a second WCB orthopaedic consultant dated October 19, 1999, the "traction rotational injury to the knee should have resolved over a period of 6-8 wks in an obese patient with pre-existing OA."

We find based on the weight of evidence that the claimant is not entitled to wage loss benefits beyond September 10, 1999. We further find that any ongoing knee difficulty is, on a balance of probabilities, related to the claimant's pre-existing non-compensable osteoarthritis and that the aggravation to his hernia was temporary only and has long since resolved.

With respect to the second issue, there has been no evidence presented, which establishes higher average earnings other than that which has already been previously determined by the WCB. Therefore, we find that the claimant's average earnings have been correctly calculated in accordance with the information contained on file.

Panel Members

R. W. MacNeil, Presiding Officer
A. Finkel, Commissioner

Recording Secretary, B. Miller

R. W. MacNeil - Presiding Officer
(on behalf of the panel)

Signed at Winnipeg this 29th day of September, 2000